Lawmakers must act to curtail mass surveillance

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If employed broadly enough, the KingFish could capture a body of cell-phone (and thus, individual) location data that law-enforcement agencies could store, sift, or use as they desire.

The cameras are lightweight, compact, and encased within squad car-mounted enclosures. The St. Paul Police Department uses them to scan and record the license plates of thousands of automobiles per day. Once a plate image is captured, an on-board LPR (license plate recognition) system checks it against law-enforcement databases, and tags each image with GPS data to create a vehicle location record. LPR systems can flag stolen cars in real time, and allow police to act on vehicle thefts swiftly and decisively.

Matt Ehling

The St. Paul police also maintain LPR data from each vehicle encounter for a 90-day period, creating a highly detailed picture of vehicle movements throughout the city that can be referenced and searched at will.

In recent years, many other Minnesota law enforcement agencies have adopted LPR systems, and have created an ever-expanding repository of information on vehicle locations — the vast majority of which are not connected to any criminal activity.

The era of mass surveillance

The use of LPR technology is just one facet of a much larger set of technical and policy developments that have been building for several years, but which have only recently entered public consciousness. As a society, we have crossed a threshold that few were willing to address until Edward Snowden‘s NSA document leaks forced a national discussion on the subject. As Snowden has warned, we have — by both design and neglect — entered an era of mass surveillance.

The legal and political fallout from the Snowden disclosures is ongoing, as courts spar over the legality of the NSA’s telephone metadata collection program. Whatever the outcome of that specific legal battle, the metadata program will not be the end of the debate over mass surveillance, or the ancillary issues that it raises. Those issues will only become more complex as technology advances, and will only become more pervasive as multiple levels of government are able to engage in mass surveillance activities. At this juncture, it is imperative that American lawmakers set out a coherent framework to address and contain this phenomenon while they are still able to do so.

Focus policy attention

Later this month, the Minnesota Legislature will hold hearings on the use of so-called “KingFish” cell-phone-location tracking devices by Minnesota law-enforcement agencies. Public records obtained by data activist Rich Neumeister have brought the local use of the KingFish to light, but police were reluctant to provide him with key public information — including the legal threshold for employing the device.

If employed broadly enough, the KingFish could capture a body of cell-phone (and thus, individual) location data that law-enforcement agencies could store, sift, or use as they desire. As with LPR, the interaction of the KingFish and telephonic technology has created conditions that could not have existed previously. Never before, for instance, has it been possible to compile such an extensive record of the movements of individual citizens.

In some respects, the issues that attend the KingFish and LPR are not unique. Technological developments have ever created new opportunities and threats. What is different now is the pace of technical development, and the scope of its implementation. Both the highly networked application of technology platforms, and the willingness of state actors to employ them against entire populations — rather than individual criminal suspects — are fundamental changes that need to be addressed by policymakers. Doing so will help to stave off the sort of future that Snowden has warned against — a future where our every action and utterance is recorded and analyzed by the government.

The Minnesota Legislature should be commended for its willingness to enter this fray. State legislatures have, by and large, been in the forefront of this debate, passing laws on the use of aerial drones, for instance. In contrast, federal implementation of mass surveillance programs has raced ahead, while federal law has lagged behind. I hope the debate over the NSA metadata program will trigger some much-needed regulatory action by Congress.

Within every political arena — federal to municipal — the reality of mass surveillance will require a new and sustained level of policy focus. Like bonding, education, or road maintenance, surveillance issues will require regular, ongoing attention. The application of critical analysis by lawmakers can ensure that potential abuses are kept at bay.

To be most effective, policymakers should adopt a three-part framework to deal with mass surveillance issues:

1. Employ warrants

The first element of this framework involves applying an old remedy — the warrant requirement — to a new challenge. The earliest Americans adopted the Fourth Amendment’s warrant requirement in response to British use of the “general warrant.” British practice was to employ no-threshold, non-specific warrants to justify searching individuals whenever the Crown desired. In contrast, the Fourth Amendment’s warrant requirement mandates specificity and review by a neutral party before searches can be conducted. The latter criteria are necessary in order to narrow the scope of searches conducted through many new technologies, and to prevent them from lapsing into mass applications that can effectively search anyone, at any time.

Courts can establish common-law warrant requirements once disputes about particular search methods are brought before them. Once a court determines that a specific practice is a search that impinges upon a zone of protected privacy, a warrant is generally required for its use. The process of reaching that determination is ponderous, and often requires decisions by multiple judicial bodies before a final resolution is reached. The binding effect of common law is important, though. For example, the U.S. Supreme Court’s Katz decision established that the tapping of telephone calls constituted a search, and set the groundwork for the contemporary statutory framework governing telephone privacy.

Beyond common law, legislative bodies can act to require warrants in circumstances that could be considered searches. Legislatures can institute these requirements proactively, and can often act faster than courts. Warrant requirements can be applied to cutting-edge technologies in order to keep pace with technical developments and expand zones of legal privacy. For example, in the late 1980s, Minnesota enacted a judicial-review requirement for the use of radio “beepers” to track the location of individual vehicles. This occurred long before the United States Supreme Court issued its Jones decision that established a warrant requirement for the use of GPS tracking devices.

Today, the KingFish poses an opportunity to institute a statutory warrant requirement to help narrow the possible abuse of that technology. A warrant requirement for the collection of cell-phone location data would allow the KingFish to be used in targeted criminal investigations, but would effectively bar its use in indiscriminate, mass surveillance. The Minnesota Legislature will likely take up such a bill during this coming session. Such evaluative opportunities will only become more frequent in the coming years, and should be used to bind new technologies within Fourth Amendment confines where possible.

2. Control retention and use

Some mass surveillance activities will occur in circumstances where the common law would not traditionally require a warrant, since the activities in question would not constitute Fourth Amendment searches. Examples would include the observation of activities that occur in plain view, such as those captured by security cameras or LPR scanners.

Even without instituting a warrant requirement, lawmakers have wide berth to regulate the collection, retention, and use of mass surveillance data that stems from such applications. Doing so is the second part of the framework necessary to prevent mass-surveillance abuses.

In particular, questions about retention and use will become ever more important as technology captures and stores increasing amounts of surveillance data. A host of issues will stem from the use of public surveillance cameras as assimilated networks grow, and as facial recognition software becomes integrated into those networks. Without statutory limits on surveillance programs, mountains of data on the whereabouts, companions, and habits of individuals will be compiled, creating conditions ripe for government misuse. Already, the City of Oakland has authorized the creation of a “Domain Awareness Center” to integrate citywide camera surveillance with Twitter feeds and crime-mapping software to enable “situational awareness” by law enforcement. Questions over similar systems will soon confront Minnesota lawmakers.

Last year, the Minnesota Legislature grappled with the regulation of LPR systems, and will do so again this session. A bill that passed the House of Representatives in 2013 attempted to winnow-down the retention of nonrelevant license plate data, so that information that does not immediately correspond to a crime is destroyed within 24 hours. Such an approach keeps individual privacy in the forefront by barring the creation of government databases about the movements of law-abiding citizens.

3. Enable transparency

Transparency is the third and final element of the policy framework for controlling mass surveillance. Given the stakes in this debate, it is critical that citizens have access to relevant information, so that sound regulations can be created.

In recent years, law-enforcement agencies have tried to prohibit certain “source and method” information from being disclosed through public data requests, and have denied access to records about particular techniques under a variety of exemptions, both permissible and otherwise. The increasing use of surveillance technologies against entire populations — instead of particular criminal suspects – requires that security-related exemption claims need to be given greater scrutiny, and challenged as appropriate.

For instance, the NSA’s telephone metadata collection program not only attempts to track terrorists, but impacts each and every citizen in America through its sheer scale. Knowledge of the later fact is crucial to any meaningful policy discussion about electronic surveillance. In such circumstances, the government needs to be forthcoming about the application of its programs in order to enable public oversight. While leaks by Edward Snowden were critical to fomenting a national debate about metadata collection, leaks should not be the recourse that is required. Lawmakers must ensure that the public has statutory access to basic information about the tools that law enforcement and security agencies are employing, including details regarding their legal underpinnings.

The time is now

America’s history is grounded in a resistance to over-broad government intrusion, and each generation is confronted with its own challenge to uphold that tradition. Subjecting entire populations to constant electronic surveillance is contrary to American values, and the time to establish a comprehensive legal framework to address it is now.

Matt Ehling is the president of Public Record Media, an organization that seeks out and publishes government documents for the benefit of the public.